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Saturday 26 April 2008

Canada: Judge in Trevis Smith case was prejudiced claims appeal

The lawyer for Trevis Smith – the professional Canadian football linebacker sentenced to five and half years' jail in February 2007 for HIV exposure (aggravated sexual assault) – is appealing for a new trial in the Saskatchewan Court of Appeal. The main legal argument is focused on Smith's right to be presumed innocent until proven guilty, claiming that Judge Kenn Bellerose was prejudiced.

Full story from The Canadian Press below.

Lawyer for HIV-positive former CFLer seeks new trial on sex assault charge

REGINA — The judge who convicted a former Canadian Football League player of knowingly exposing women to HIV focused too much on the testimony of the victims, while giving the accused's defence short shrift, the Saskatchewan Court of Appeal heard Wednesday.

Lawyer Clemente Monterosso was in front of the province's highest court arguing that Trevis Smith should be given a new trial. Smith was convicted of two counts of aggravated sexual assault last year after a judge found the former Saskatchewan Roughrider linebacker had unprotected sex with two women - one from Regina and one from British Columbia - and didn't inform them of his HIV infection.

Monterosso's central argument focused on Smith's right to be presumed innocent until proven guilty of the charge.

The lawyer attacked the way provincial court Judge Kenn Bellerose's decision dealt with the evidence from the Regina woman before it dealt with Smith's testimony. In doing so, Monterosso contends the trial judge decided Smith's victims were credible before he decided not to believe Smith's testimony.

"He already made up his mind before listening to the defence," Monterosso told the three-judge panel. "Once this is done there is absolutely no presumption of innocence for Mr. Smith - he is guilty as charged."

But Crown lawyer Bev Klatt argued Bellerose contrasted the victims' testimony against Smith testimony throughout his decision. In the end, Klatt said, the judge decided Smith simply wasn't credible.

"He's looking at both all throughout," Klatt argued.

Smith, an Alabama native who was arrested and charged in 2005 while still a member of the Roughriders, was sentenced to 5 1/2 years for the sexual assaults and an additional six months for various bail violations to which he pleaded guilty.

He is currently serving his time in Prince Albert, Sask. He is eligible for parole in February. His statutory release date after serving two-thirds of his sentence is February 2011.

At trial, the B.C. woman said she and Smith had unprotected sex several times after he found out he was HIV-positive in November 2003, but he never told her he had the virus - even when Smith became aware she wanted to donate a kidney to her ailing father.

Smith testified he told the woman about his condition in August 2004 and that the two used condoms during sex from that point.

The Regina woman testified she had a casual sexual relationship with Smith. She said Smith denied rumours that he was HIV-positive and the two had unprotected sex on three separate occasions.

Smith denied having sex with the Regina woman after he tested positive.

Neither woman had tested positive for the disease.

Smith's testimony at trial contradicted not only the evidence of the victims, but previous statements he gave to police and public health nurses and even an agreed statement of facts entered by his lawyers at trial. Bellerose rejected virtually all of Smith's testimony, at time referring to him as "totally unbelievable" at points.

Monterosso also argued Wednesday that Bellerose's use of the police statements in deciding Smith's credibility was an error because Smith had the right to remain silent with police and could say as little or as much as he wanted.

But Klatt pointed out that Smith gave a voluntary statement to police and was advised of his rights before they talked to him.

The appeal court reserved its decision.



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